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State v. Cameron5/11/2005
Respondent defendant, while driving his boat under the influence at a high rate of speed, struck another boat and killed six people. After he was found guilty of both manslaughter while operating a vessel under the influence of alcohol (BUI) and manslaughter with an unlawful blood alcohol level (UBAL) for each of the six deaths, the state asked the trial court to vacate specified convictions, because dual convictions for each death would violate double jeopardy. The trial court granted the state's motion and, as the state requested, sentenced defendant for three BUI manslaughter counts for three of the victims and three UBAL manslaughter counts for the remaining three victims.
This court affirmed the three UBAL manslaughter convictions and sentences, but reversed the BUI manslaughter counts for a new trial. Cameron v. State, 804 So. 2d 338 (Fla. 4th DCA 2001). On remand, the trial court resentenced the defendant on the affirmed convictions as well as the counts which had been vacated by the state before the appeal. The defendant then moved in this court to enforce our mandate, and we granted the motion on August 21, 2003, stating:
Any sentence imposed shall be limited to the counts expressly affirmed in the opinion of this court. Those counts vacated before appeal, in the trial court, are deemed dismissed by the State and may not be used for sentencing.
The state moved for rehearing of this order and the motion was denied on September 22, 2003. It appears that nothing has occurred in the trial court following our order enforcing the mandate, but, nearly one year later, the state filed this petition for writ of prohibition or mandamus, seeking an order compelling the trial court to resentence defendant on the verdicts which had been vacated at the request of the state.
The term of court during which our order enforcing the mandate became final expired in January 2004. § 35.10, Florida Statutes (2005). An appellate court's power to recall its mandate is limited to the term during which it was issued. State Farm Mut. Auto. Ins. Co. v. Judges of Dist. Court of Appeal, 405 So. 2d 980 (Fla. 1981). This court is accordingly without jurisdiction to reconsider its August 21, 2003 order enforcing mandate.
GUNTHER, J., concurs.
MAY, J., concurs specially with opinion
MAY, J., specially concurring.
I concur in the outcome, but only because there appears to be no means by which this court has jurisdiction to review the matter at this time. The State seeks to prohibit the trial court from re-sentencing the defendant following this court's reversal and remand. I agree with the majority that prohibition is not the appropriate remedy because the trial court has jurisdiction to sentence the defendant.
While the Florida Supreme Court has previously invoked the "all writs" provision of the Florida Rules of Appellate Procedure 9.030(b)(3) and 9.100(a) to correct an erroneous ruling made in one of its prior opinions, the writ has not been used by the intermediate appellate courts for this purpose. See Bedford v. State, 633 So. 2d 13 (Fla. 1994) (cited in Phillip J. Padavano, Florida Appellate Practice § 28.7 (2005 ed.) at 555, n.1); but see, Cash v. Smith, 465 So. 2d 1294, 1296 (Fla. 1st DCA 1985) (" t cannot be used as an independent basis of jurisdiction."); St. Paul Title Insurance Corp. v. Davis, 392 So. 2d 1304, 1305 (Fla. 1981) (" his Court's all writs power cannot be used as an independent basis of jurisdiction . . . ."). It does not therefore provide an avenue for this court to review the matter.
I find this reality to be unfortunate because this is not a typical re-sentencing upon remand. It
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